Top five myths about children and road accident compensation claims

It’s estimated that around 40,000 children suffer a brain injury each year in the UK [1] and road accidents are a common cause.

Unfortunately, a lot of victims and their families wrongly think that their child cannot obtain compensation for an injury caused by a road traffic accident.

In this blog I’m going to try to put right some of these myths. Compensation can make a huge difference to the child’s quality of life. It is important that parents have the support they need when an accident has happened to their child and their lives have been devastated. I support the families of brain injured children and seek justice for them. I am always happy to speak to any relatives or carers looking for information when a child has been injured.

So here are my top five myths about children and road accidents. I hope they’re helpful.

Myth number 1 – My child ran into the road so there is no claim

In my experience this is a very common scenario. A child runs into the road and is hit by a car. But that doesn’t mean we cannot get that child the compensation they deserve.

One of my current cases is a good example to dispel this myth. My client, an 11 year old boy whom I will call Bobby for the purpose of this blog, was knocked over by a car while crossing the road. CCTV showed that Bobby ran into the road from behind a parked bus. The driver was travelling in the opposite direction at 31 mph, but had slowed to 29mph by the time he hit Bobby, who was thrown into the air and landed in the road. Bobby suffered severe injuries including a brain injury.

The driver could not have seen Bobby before he stepped out into the road. However, he should have been aware that pedestrians may be crossing the road close to a bus stop and driven more slowly and carefully.

The following paragraphs of the Highway Code [2] were relevant to the law’s view of what the driver should have done:

205 – “there is a risk of pedestrians, especially children, stepping unexpectedly into the road. You should drive with the safety of children in mind at a speed suitable for the conditions.”

207 – “particularly vulnerable pedestrians… include:Children and older pedestrians who may not be able to judge your speed and could step into the road in front of you…”

Unsurprisingly, the driver denied it was his fault and he was supported by his lawyers and insurance company. I investigated liability which involved obtaining the police report, statements from witnesses and a report from an accident reconstruction expert. Shortly before the trial the driver finally accepted that he was liable for the accident, but said that Bobby was 50% to blame. This was in fact an excellent outcome which Bobby’s family are happy with and will secure a very large sum for Bobby’s future.

By taking a strong view on the law, getting the right evidence and never giving up, life changing amounts of compensation can be recovered even when a child has run straight out into the road.

Myth number 2 – The driver was not prosecuted therefore my child cannot bring a claim for compensation

It is often the case that the police decide not to charge a driver with a criminal offence when a child has been seriously injured in a road accident, but that doesn’t mean the child has no right to compensation.

It is much easier to win a civil claim than convict someone of a crime, and you can be negligent without committing any crimes.

In criminal cases the judge or jury must be convinced “beyond reasonable doubt” that the person committed a crime. That means that if the judge has any reasonable doubts at all, he cannot convict. In contrast, in civil claims for compensation, you just have to prove that it is more likely than not that the defendant was negligent. In other words that it is 51% likely.

In Bobby’s case, the defendant was not charged with a criminal offence, but we still won his civil claim for compensation.

Myth number 3 – The court will not accept evidence from a child

There is no blanket bar on children giving evidence in court; the child might be the only witness.

If the child is 14 or over, they will normally be expected to give evidence as a witness under oath. If they are under 14, they will normally give evidence without swearing an oath.

Section 96 of the Children Act 1989 provides that even where a child does not “understand the nature of an oath”, the child’s evidence may still be heard by the court in civil proceedings if:

He understands that it is his duty to speak the truth; and

He has sufficient understanding to justify his evidence being heard.

The court may agree to the child giving evidence in a different way:

by live TV link;

from behind a screen; or

via a video recorded statement.

However, parents should be aware that a Judge may not give as much weight to the evidence given by a child as opposed to that of an adult.

Myth number 4 – My child was injured in a hit and run accident so cannot claim compensation

It is fortunate that this is a myth because hit and run accidents involving children are more common than you might think.

I am currently acting for a young man who suffered a brain injury when he was knocked over by a motorcycle involved in an illegal race. The motorcyclist drove off before anyone could take down his number plate.

In hit and run cases, like this one, the injured child can seek compensation from the Motor Insurer’s Bureau (MIB) under the Untraced Drivers’ Agreement. The MIB is an organisation which compensates victims of uninsured and untraced drivers. In order to bring a successful claim under the Untraced Drivers’ Agreement, you must make a claim within three years of the accident – or, in the case of a child, by their 21st birthday. You must report the accident to the police within 14 days of the accident. In serious cases where a child has suffered a brain injury, the police will be aware of the accident; having attended the scene to investigate the cause of the accident. It is essential that you fully cooperate with the police.

Myth number 5 – My child was injured in a road accident and I was the driver therefore my child cannot bring a claim for compensation

In fact, as an injured passenger, the child has a very strong claim for compensation but the parent will have to accept that they may be sued.

All children bringing personal injury claims need an adult to make decisions for them in the case. The parent or carer who was driving cannot be that person if they are being blamed by the other driver, even if they are not at fault. Usually the other parent or a family member will act.

I previously wrote about the very tragic case of Hughes v Williams & Williams [2012] EWCH 1078, which is relevant to this myth. This case involved a three year old girl named Emma Hughes who suffered devastating brain and spinal cord injuries in a road traffic accident. The car in which Emma was travelling was being driven by her mother. The other driver was speeding and lost control of his vehicle, which was travelling in the opposite direction, and swerved into the path of their car. Emma’s mother was found to be partially to blame for Emma’s injuries, because she had placed Emma in an inappropriate car seat and so she couldn’t make decisions for Emma. To find out more about what happened in that case, see my previous blog.

If a child has suffered a brain injury in a road accident, he/she will need compensation to ensure they can access specialist treatment, education, equipment and care to meet their complex needs. I hope that my blog has dispelled some of the myths surrounding road accident compensation claims involving children, and that any parents affected will seek specialist legal advice before presuming their child cannot claim compensation.

I am a Partner at Bolt Burdon Kemp specialising in brain injury claims involving children. If your child has suffered a brain injury in an accident, contact me free of charge and in confidence on 020 7288 4854 or at cherylabrahams@boltburdonkemp.co.uk for specialist legal advice. Alternatively, you can complete this form and one of the solicitors in the team will contact you. You can find out more about the team here.